Judge Pal with Jefferson Davis in Tokyo

[Mark Drumbl is Professor at Washington and Lee University, School of Law. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. This contribution was originally posted at legalsightseeing.org. ]

International judges get so very few monuments in their honor. One such judge, however, has two. This judge is Radhabinod Pal, from India. Justice Pal sat on the International Military Tribunal for the Far East (IMTFE). Following World War II, General Douglas MacArthur convened the IMTFE to prosecute the Japanese leadership. The IMTFE issued its sentences in November 1948. It convicted 25 defendants.

Justice Pal lengthily (digressively, verbosely, astutely) dissented. He would have acquitted each defendant. While Pal determined that atrocities had been committed by all sides in the Pacific Rim, he would not have convicted because of retroactivity for some charges and lack of individuated evidence for other charges. It perturbed Pal that international law suddenly could sanction the Japanese leadership for having mimicked the colonial imperialism of the West. The time was not right; things were not yet ripe. According to Pal, international law could only legitimately punish if it organically emerged through and from a genuinely equal consensus of all states.

Pal’s dissent is well-studied, so much so that it has become both overcooked and overdrawn. The memorials in his honor, however, are barely noted outside of Japan (where both are sited). One memorial is in Tokyo, the other in Kyoto.

The Tokyo memorial sits between the Yasukuni Shrine and Yushukan, a museum committed to the Japanese military. The Yasukuni Shrine dedicates itself to Japanese war dead. Pal’s memorial was completed in 2005, well after his death in 1967. The shrine and the museum have attracted controversy for venerating the Japanese war effort and for aligning that effort with a ‘lost cause’.  At the unveiling of the Pal dedication at Yasukuni in 2005, Nambu Toshiaki – the Shrine’s Chief Priest – stated: ‘It is my earnest wish that the drift of masochism will end, and the day when the spirits of war dead may rest in peace comes as early as possible.’ The use of the term masochism is literal. It refers to those Japanese who beat themselves up over Japan’s role in the war. Pal early on buoyed what became the Chief Priest’s wish. Kirsten Sellers notes how in his three visits to Japan after the IMTFE judgment was delivered he spent time ‘addressing rapturous nationalist audiences, sipping tea with the defendants’ families, and visiting the inmates of Sugamo Prison.’

Pal Memorial, Tokyo. July 2 2018 (author’s photograph)

I have sat with Justice Pal in Tokyo twice over two intermittent summers: sightseeing, so to speak, in 2016 and 2018. I have come here, to him, at sunrise. I have taken iPhone snapshots during the day. I have drunk beer and stretched my legs here, with him, at sunset.

Tokyo’s Pal memorial reclines in a courtyard of statuary. On the immediate left next to the memorial (when one faces it) is a statue commemorating a Japanese mother, widowed, who clutches three children. To the left of this statue is a glass enclosure containing tattered shoes, military garb, and two maps that (I think) show parts of Burma. On the right of Pal is a monument commemorating a patrol boat and sailors; to the right of that is an old bronze cannon. More or less across, though slightly diagonal, from left to right when one faces away from Pal are three statues in a row that commemorate animals for their service in war: a dog, a horse, and a carrier pigeon. And to the right of the carrier pigeon sits a smoking enclosure. Benches weave all around. It is a tranquil, pretty place. Vending machines sell cold canned coffee to refresh visitors in the heat and humidity.

On its front, the memorial showcases four lines, in English, pulled from the very last line of Pal’s nearly 250,000 word dissent. These four lines are engraved on a silver plaque. These, however, are not Pal’s words. They are the words of another. Pal had placed them in quotes in his dissent but also refrained from attributing them to their actual source, namely, the original speaker. The source of these words may come as a surprise. It did to me, at least. These words trace to the first (and only) President of the failed Confederate States of America, the slaver Jefferson Davis, shared in December 1888 in the aftermath of the South’s crushing loss in the US Civil War:

When Time shall have softened passion and prejudice,

when Reason shall have stripped the mask from misrepresentation,

then Justice, holding evenly her scales, will require

much of past censure and praise to change places.

Quite an ironic twist and tangled web to see Justice Pal – the principled anti-imperial anti-colonialist who bemoaned racism – quoting unrepentant white supremacist Jefferson Davis. What an odd meander. In his dissent, Pal carefully sets the stage for invoking Davis – ‘We may not altogether ignore the possibility that perhaps the responsibility did not lie only with the defeated leaders,’ Pal writes in his dissent – and then introduces Davis words with the opening ‘It is very likely that.’ Pal thereby does not offer Davis’ plea that Reason (a word which Pal chooses to singularly underline in his judgment) will strip the mask from misrepresentation as rumination, but, rather, as evidence of the IMTFE as irrational vengeance and venal sham.

Pal’s memorial thereby quietly morphs into a Confederate commemoration. Davis’ very same words incidentally adorn the north side of a Confederate memorial dedicated in 1909 by the United Daughters of the Confederacy in Andersonville, Georgia. This memorial honors Captain Heinrich Wirtz, a Confederate commander of one of the (supposedly) most abhorrent of the South’s military prisons. Designed for 10,000 detainees, at its peak the Andersonville prison housed 33,000; in total, a quarter of Union soldiers detained at Andersonville died of disease, malnutrition, filth, and neglected wounds. Wirtz was convicted of war crimes and hanged in Washington DC on November 10, 1865. That said, the Confederacy (and some historians) deeply contest the accuracy of these allegations.

Pal twice explicitly mentions the Confederacy in his dissent. The first is his bland reference to the surrender of General Robert E. Lee (commander of the Confederate Army) to General Grant (commander of the Union Army) as part of the history of the term ‘unconditional surrender’. Pal’s second invocation, however, is far edgier. Pal gestures towards the treatment of prisoners of war in the US Civil War. Pal brings into play the accusations of the wretched conduct alleged within the Confederacy, only to deride these claims as ‘baseless […] prison atrocity stories …later disproved almost in totality,’ yet serving as ‘major elements in a propaganda designed to arouse the animosities.’ Pal connects these false ‘stories’ designed to revile the Confederacy (the fake news of the time) to the IMTFE: Pal opines that these ‘bear a striking similarity to the stories of atrocities now before us’ at Tokyo. This leads Pal to question the veracity of testimony and to exhort the need for caution regarding abuses committed at Japanese-run prisoner of war camps. In a sense, then, Pal picks up the very mantle and mettle of the Andersonville memorial.

Why does this connection beguile me so? Well, I work at a law school founded by and named after Robert E. Lee. I have written about Confederate memorials. And now, in my journey of ‘sitting with’ Justice Pal, in Tokyo, I unexpectedly feel déjà vu: the ‘there’ in Tokyo is so like the ‘here’ on my campus in rural Virginia, a campus (along with many others in the US) roiled by a racist past. Two lost causes, so to speak, two forms of alterity conjoined though Pal’s dissent.

In May 2017, after standing vaingloriously erect for 116 years, Jefferson Davis – at times defaced and often reviled – himself was airlifted off a perch in New Orleans, the city where he lived (and died) after the Civil War. Davis’ statute was removed by crane in the dark of the night, joining the many other Confederate statuary populating the dust-bin of the discarded – the cause finally ‘lost’ indeed. The pedestal, too, was removed.

Pal, on the other hand, endures. His site survives and thrives. There is no vandalism here. The site, in fact, is lovingly maintained and adorned with fresh flowers. It is spotless. A box provides flyers – paper flyers protected from the elements – that detail the background to the memorial. The flyers laud Dr. Pal because ‘he devoted all his energies to the perusal of innumerable books and documents, attempting to obtain a fair and disinterested view of the period that the indictment was declared to cover.’

Pal’s dissent fractured the IMTFE, to be sure, but in so doing may have bolstered the IMTFE’s credibility. More tangibly: had Pal not dissented, he never would have been lionized as he was. No memorials would have been built or maintained. Had Pal not dissented, moreover, my intuition is that other sites of recollection in Tokyo would be of a different tenor and composition. Pal’s dissent pluralized how to remember the atrocities, suffering, pain, and realities of the Pacific war. Pal created room.

Tokyo boasts six museums that involve World War II. Each is very different in tone and curatorial perspective. Pal’s shadow lingers in different hues throughout each of them. In two among these six, Pal’s shadow becomes spectral – almost a whisper – since he is not referenced.

The Memorial Museum for Soldiers and Detainees in Siberia and Postwar Repatriates is sited on the 33^rd floor of a generic office building amid the business and ramen of Shinjuku. This museum helps ‘ensure that the memory of the suffering of Japan’s World War II soldiers, detainees in Siberia, and postwar repatriates is passed down to future generations who have never experienced war’. It includes a ‘diorama [that] reproduces life in a Russian concentration camp, where the inmates survived forced labor, terrible cold, and a near starvation diet’. It is here that the thread of the suffering of Japanese civilians, including those who emigrated to Manchuria to occupy conquered lands, is narrated along with the fates of those combatants who fought there. This museum also evokes of the last-minute declaration of war the USSR made against Japan, and the resultant territorial shifts in the region.

Manchuria is also the place where the first brothels, which later became institutionalized as comfort women stations, were established. Tokyo’s Women’s Active Museum on War and Peace is a gem of a place, an inspiring new space, which focuses on comfort women and also doubles as an archive for the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (2000). This museum sharply criticizes the Japanese government. It is a venue that recounts the victimization, and survival, of many women of many nationalities. Justice Pal was even less charitable than the IMTFE majority when it came to the sexual torture and enforced prostitution of thousands of women. He was a skeptic, wincingly so. In his own words, pulled from his dissent: ‘I might mention in this connection that even the published accounts of Nanking “rape” could not be accepted by the world without some suspicion of exaggeration.’ Pal’s sarcastic air-quotes around the word rape, intentionally introduced, speak volumes.

Perhaps it is good for human rights activists, keen on the centrality of remembering, to grapple with the commemoration of a dissent that may trigger discomfort. Memorialization of law, assumed to be benign and victim-centric, may not be so simple. Pal’s memorial is quite a different kind of site/sight but, certainly, it forms part of the public histories – the representations on (and from) the ‘street’ – of courtroom accountability.  Pal’s site blushes and gushes with the staccato, unresolved, and vexing paths of international law. It confounds and confronts as it consoles.

Woman’s Active Museum on War and Peace, portraits of comfort women, flowers in memoriam. Tokyo, July 4 2018 (author’s photograph).